Council erred in law when drawing up pathway plan by taking account provision to claimant of NASS accommodation: High Court

Jonathan Moffett KC, sitting as a deputy High Court judge, said this was “a legally irrelevant consideration” in a case brought by AAM against the London Borough of Bromley.

AAM was briefly accommodated by Bromley before his 18th birthday after which he was required to leave and has since resided in NASS accommodation.

In August 2024, the council finalised a pathway plan which sets out the assistance it decided to provide to him.

AAM argued the pathway plan was unlawful, primarily because Bromley’s decision not to provide him with accommodation was unlawful.

Mr Moffett said one of AAM’s grounds raised a point of law as to the relationship between the council's functions under ss 24 and 24A of the 1989 Act and the Secretary of State's functions under s95 of the 1999 Act.

Case law on the relationship between analogous social services functions and the Secretary of State's functions meant Bromley was, when deciding what assistance it would provide, required to disregard that AAM was being provided with NASS accommodation, the claimant argued.

His counsel said the main remedy now sought was a prompt re-assessment of his needs and a new pathway plan.

Mr Moffett said the main issues for him to determine were:

• when the council decided not to provide accommodation to the claimant under s24A(4) and (5)(a), was it lawfully entitled to take into account that he was being provided with NASS accommodation;
• did Bromley adopt an unlawful approach to the question whether there were exceptional circumstances for the purposes of s24A(5); was the pathway plan unlawful on conventional public law grounds in particular;
• did the council fail to make reasonable inquiries, or otherwise act irrationally;
• was Bromley required to produce a pathway plan which complied with the requirements of the 2010 Regulations and, if so, did it comply?

AAM is an Algerian national now aged 20 years old who arrived in the UK in February 2022, fearing that his bisexuality would lead persecution in Algeria were this discovered.

He lived with a relation in Bromley but when this arrangement ended was placed in council accommodation as a child in need, but for fewer than 13 weeks and so never became an ‘eligible’,’relevant’ or ‘former relevant’ child for the purposes of the 1989 Act.

Bromley argued that s24A(5) of the 1989 Act should lead to the conclusion that the hierarchy of functions is reversed and its functions should be treated as residual because the section confers a discretionary power triggered only where there are exceptional circumstances.

Mr Moffett said: ”On the face of it, [this] submission has some attraction. It might be said that a power, and especially a power which may be exercised only in exceptional circumstances, cannot sensibly be treated as being above a duty in a hierarchy of functions, and that the power under s 24A(5)(a) must therefore be residual to the duty under s 95(1).

"It might be said that such an approach would reflect a local authority's role as a ‘friend and advisor’. Ultimately, however, I am unpersuaded.”

For Bromley’s argument to succeed, it would have to show that AAM had no means of obtaining accommodation under s 24A(5)(a) (cf s 95(3)(a)) and that it was unreasonable to expect such accommodation to become available.

Mr Moffett said a local authority may provide accommodation to an asylum seeker who is a qualifying young person if his or her welfare requires it and if the Secretary of State cannot provide it.

“If the discretion to provide accommodation under s 24A(5)(a) were to arise in those circumstances, it is difficult to see how a local authority could properly decline to exercise that discretion,” he said.

“On that basis, in general terms (and subject to any particular factual nuances), accommodation under s24A(5)(a) might reasonably be expected to be available to the asylum-seeker.”

He said this meant the fact that a local authority's power to provide accommodation under s24A(5)(a) is discretionary and subject to an exceptional circumstances criterion “does not make a material difference to the analysis.

“In a case such as the claimant's, it is in practice reasonable to expect the exceptional circumstances criterion to be satisfied and for the discretion to be exercised. Therefore…there is a mechanism by which accommodation is available to the asylum-seeker other than under s 95, and the Secretary of State's functions under s 95 continue to have a residual status.”

The deputy High Court judge concluded that when a local authority decides whether there are exceptional circumstances for the purposes of s 24A(5), it is not entitled to take into account the fact that a qualifying young person is being provided with, or might be provided with, NASS accommodation under s 95; and “that is a legally irrelevant consideration”.

It followed that, when Bromley drew up the pathway plan, it erred in law by taking NASS accommodation into account.

“As a result, the pathway plan is unlawful, and the claimant succeeds on the first issue,” Mr Moffett concluded.

He awarded AAM only 60% of his costs as he did not succeed on a number of other grounds argued and since costs had been unnecessarily increased because “up until the first day of the hearing, the way that the claimant put his case on most of those points was at best unclear and at worst unsustainable”.

Mark Smulian